Apple in the glass house

Both Taylor Swift and Jason Sheldon have become involved in a very public exchange of ballistic brickbats.

Taylor Swift has led a music revolution against Apple's subscription service Everett Collection

For those who have not followed the details of this argument, the spat runs as follows: Taylor Swift is a singer songwriter of some renown, while Jason Sheldon is a photographer for whom images of live concerts are a significant part of his work.

When Apple decided to launch a new music subscription service with a free three-month trial to tempt early subscribers, it declared that as Apple will not be paid during this time, it will not pay the artists whose music it will use (despite sitting on a pile of cash rivalled only by Smaug's hoard of gold in The Hobbit).

Taylor Swift then refused to authorise use of her music unless Apple agreed to pay royalties from their own resources to all artists during the trial period. So Apple backed down. Jason Sheldon then entered the argument with an open letter to Taylor Swift challenging the terms on which she permits professional photography at her concerts. In particular he objects to two provisions:

•Photographs are licensed for a single use only and cannot be re-used without authorisation from her management. That excludes, for example, inclusion on the photographer's website or licensing them to other publications.

•The same images can be used by Taylor Swift any number of times for any purpose without payment for ever.

Jason's principal complaint is the dichotomy in Ms Swift's critique of Apple and her imposition of what he sees as similarly draconian terms. So who is right? Probably all three. Apple claims it was offering enhanced royalties once the three month trial offer ended, but that does not get away from the fact that Apple was trying to build a business based on minimum cost, at the expense of the artists, and that appeared wrong. (Apple's huge cash reserves may have had something to do with it as well.) Taylor Swift has a valid point that Apple are using copyright material to generate business without paying for it. But Jason Sheldon also has a valid point.

Putting a contractual restriction on the use of photographs is not new. For instance, art galleries commonly insist that no one takes photographs of their paintings in order to control their commercial exploitation. But this situation is different. Taylor Swift is not a painting and has no blanket right (at least under English law) to prevent the use of her image.

Whilse it would be perfectly reasonable for her to stop the use of her image in advertising to falsely imply an endorsement of someone else’s products, it goes too far to ban all uses. In restricting Mr Sheldon's right to licence his photographs, Taylor Swift is undermining the value of his creative input and preventing him from generating income from this part of his work. Even if he were able to negotiate the right to grant licences to multiple publishers (and part of his argument is that there is no negotiation permitted on this), all of the same material would be available from Taylor Swift directly (potentially for free) and certainly without payment to his coffers.

Taylor Swift's management make the point that further use of photographs by the photographer is allowed if permission is granted, but there is no information on what might be required to obtain permission, so that offers little comfort.

Legally, any commercial operation, be it a company or an individual, can dictate terms on which they do business as long as those terms are not unconscionable and do not breach certain inalienable rules (such competition law and consumer protection law), so it is unlikely that either Apple or Taylor Swift has done anything legally wrong. But the commercial terms of what are, in each of these cases, unilaterally imposed terms can have an adverse effect.

Apple backed down because of commercial pressure and perhaps Taylor Swift will also reconsider the sharper elements of her standard terms. She has much more commercial power than the photographers who sign her agreement and, in limiting their ability to capitalise on their own creative input, she is venturing into territory on which even Apple did not encroach.

By throwing a few stones at Apple, Taylor Swift has opened herself up to being the target for others. But, as long as they do not damage the glass house in which they operate, this can be a salutary lesson of wider application in how far to push the control of copyright.

Peter Birkett is an Associate at Howard Kennedy. He can be reached by email: peter.birkett@howardkennedy.com. Visit www.howardkennedy.com.